1. Ways to Avoid Forfeiture, i.e., Not Apply the Law of Conditions
Contract Conditions
Ways to Avoid Forfeiture, i.e., Not Apply the Law of Conditions
Already known: rules of construction (avoid forfeiture, against the drafter, implied duties, e.g. good faith, i.e., …imply a quasi contractual term in equity, etc.).
Other: Waiver (treat a right of condition as lost for continuous non-enforcement of it as a pattern);
Equitable estoppel (don’t enforce condition for some unfairness by party asserting it);
Election (if a party fails to argue condition law up front, loses right to opt for it at later time;
Mutually Dependent Promises: esp. if there are two sets of (related) obligations between the same parties in different documents, treat them as dependent promises/obligations, i.e., “I do not have to do mine or can suspend it if you are not doing yours.”
This is an area where courts often move into the equitable side of their jurisdiction to do what seems fair – but should not if a condition is clear and parties knew the risks.
The idea is that courts do not like forfeiture, and so where a “condition” is on shaky ground, i.e., not intended or not clear whether condition or promise, courts find ways not to enforce a condition upon its failure. The facts and circumstances, as well as court sensibilities, determine whether and which of the alternatives to enforcement (which leads to forfeiture) may be used.
© 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension